ROJAS v. BUREAU OF PRISONS

May 2, 2005.

JUAN RAMON ROJAS, Petitioner,
v.
BUREAU OF PRISONS, Respondent.

The opinion of the court was delivered by: JEROME SIMANDLE, District Judge

OPINION

Petitioner Juan Ramon Rojas filed a Petition for a Writ of
Habeas Corpus under 28 U.S.C. § 2241 challenging the calculation
of his good conduct time ("GCT") by the Bureau of Prisons
("BOP").*fn1 For the reasons set forth below, the Court
dismisses the Petition.

I. BACKGROUND

Petitioner is currently serving a federal sentence of 87 months
imposed by the United States District Court for the District of
Massachusetts. According to the BOP, Petitioner is eligible under
18 U.S.C. § 3624(b) to receive 54 days of GCT per year, based on
the time he will actually serve in prison rather than the
sentence imposed. See 28 C.F.R. § 523.20. BOP projects
Petitioner's release date as July 13, 2005.

Section 2241 of Title 28 of the United States Code provides in
relevant part:

(c) The writ of habeas corpus shall not extend to a
prisoner unless . . . He is in custody in violation
of the Constitution or laws or treaties of the United
States.

28 U.S.C. § 2241(c)(3).

A federal court has jurisdiction under § 2241(c)(3) if two
requirements are satisfied: (1) the petitioner is "in custody"
and (2) the custody is "in violation of the Constitution or laws
or treaties of the United States." 28 U.S.C. § 2241(c)(3);
Maleng v. Cook, 490 U.S. 488, 490 (1989);

This Court has subject matter jurisdiction over the Petition
because "[s]ection 2241 is the only statute that confers habeas
jurisdiction to hear the petition of a federal prisoner who is
challenging not the validity but the execution of his sentence."
Coady v. Vaughn, 251 F.3d 480, 485-486 (3d Cir. 2001); Gomori
v. Arnold, 533 F.2d 871, 874 (3d Cir. 1976).

C. The Merits

In his habeas Petition, Petitioner argues that, by calculating
his GCT based on the time served, as opposed to the sentence
imposed, BOP is depriving him of the opportunity to earn
additional GCT, to which he is statutorily entitled under
18 U.S.C. § 3624(b). Petitioner maintains that § 3624(b) authorizes
him to earn 54 days for each year of the sentence imposed and
that BOP erred by allowing him to earn only 54 days for each year
served. He seeks a writ of habeas corpus directing BOP to
recalculate his GCT based on 54 days per year of the sentence
imposed.

&nbsp; This case is governed by the Third Circuit's recent decision in
O'Donald v. Johns, 402 F.3d 172 (3d Cir. 2005). Like
Petitioner, O'Donald filed a habeas petition challenging the
BOP's calculation of his GCT based on the time actually served,
rather than the sentence imposed, arguing that the plain language
of 18 U.S.C. § 3624(b) requires BOP to calculate GCT based on the
sentence imposed. The Third Circuit acknowledged that "it is
unclear whether the phrase `term of imprisonment,' as used
several times in § 3624(b), refers to the sentence imposed or
time served." O'Donald at 174. The Third Circuit found that BOP's interpretation of the statute is reasonable and,
because the statute is ambiguous, the Court deferred to BOB's
reasonable interpretation of the statute. "[W]e agree that the
BOP's interpretation comports with the language of the statute,
effectuates the statutory design, establishes a `fair prorating
scheme,' enables inmates to calculate the time they must serve
with reasonable certainty, and prevents ...

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